Legal Blog (22)

There seems to be some amount of confusion as to whether or not you can commit a drink driving charge in Queensland within a private are such as your driveway, or in a, say a private place such as a car park. We are often contacted by people who believe they should not have been charged with a drink driving charge as they were not on a road at the time of the offence. In Queensland the legislation is fairly clear when it comes to drink driving. The police have to essentially prove three things to obtain a conviction for a drink driving offence The first is the fact that the person had alcohol in their system, the second is that they were the driver or in charge of the vehicle at the time of the offence. The last thing that must be proven is where the offence occurred. The legislation provides that the drink driving an offence can be committed can be committed on or upon a road or elsewhere.

Section 4 of the Transport Operations (Road Use Management) Act defines a road and elsewhere to mean any place other than a road, so in essence the definition where a drink driving offence can occur is on a road, or in any place other than a road. So you can see that there is no place where you can be driving and not be potentially charged with a drink driving charge. Interesting, a motor vehicle may still be considered a motor vehicle even if it is impossible to drive, although there are occasions where a person is caught in charge of a motor vehicle that is not actually driving a motor vehicle, but occupying the front seat of the vehicle, or being in charge by way of the fact that they have access to the vehicle and was shown intention to drive.

Drink driving legislation in Queensland now provides that any person who is charged with a drink driving offence that is a mid-range or high-range offence will immediately lose the ability to drive. Those persons who have a low-range drink driving charge only have a 24-hour prohibition on driving after being arrested. A low range drink driving offence applies to readings between .05 and .099, a mid range drink driving offence applies for readings between .1 and .149 and a high range drink driving offence is anything above that.

People who have received an immediate suspension notice from the police will often suffer a huge shock to both work and personal life arising from the inability to continue to drive. While it’s true in Queensland, we have mandatory periods of disqualification, the impact should not be overlooked.

The legislation does provide some levels of relief to the impact on the loss of a person's licence. The first area in which the legislation provides some relief is that the period of suspension that a person has served under the notice may be taken into account by the Magistrate when setting the disqualification period for the drink driving charge. This does not mean that the disqualification that the court sets will run from the date of arrest, it will still run from the day that the Magistrate disqualifies the person's licence, however in setting the penalty the Magistrate may take into an account the period that a person has spent off the road.

This is meant to work in the following way. If the Magistrate was considering imposing a disqualification of two months and the person had already been suspended for a period of one month, then the Magistrate should set a penalty of one month only.

In practise, the period of time a person has spent under suspension may very well be taken into account by the Magistrate but each Magistrate treats that period of suspension quite differently. As the legislation doesn't provide that the Magistrate must lower the disqualification as a result of the person's immediate suspension period, simply then it may be taken into account, each Magistrate will use their own judgement as to how much they take into account the immediate suspension period.

The other way the legislation provides some relief is that where a person is challenging a drink driving charge or applying for a work licence, then, under the act you are able to apply to the court for an immediate return of your licence. The requirements for the application are very similar to a work licence application in that a person must file an affidavit of themselves and an application form. This is known as a Section 79E Application. Further information could be found on our website at www.drivinglaw.com.au/blog/item/3-all-you-need-to-know-about-section-79e-applications.html

In practise this type of application is generally of most use where a person's court date for the hearing of a work licence application is some time in the future. For instance, Southport Magistrate's Court will not hear work licences on the first court date, so for example, say you had a mid-range drink driving charge and were immediately suspended and your first court date was three weeks into the future, then you will be suspended for the period up until your first court date plus whatever period runs from the date of your first court date to when the application for work licence is actually heard. This would generally be at least a week or two after the initial court date as Southport Magistrate Court only hear work licence applications on Tuesdays at 9am.

To mitigate that period of suspension, a person could lodge an application for a Section 79E Licence prior to the first court date and seek the ability to continue to drive up until the Magistrate ultimately deals with the entirety of the work licence application which as stated above, may be five weeks after the arrest.

There are strict timelines applying for people who are wanting to apply for a section 79E Licence and as such you need to take immediate legal advice should this be something you wish to pursue.

Finally, we need to discuss the consequences of driving whilst on the immediate suspension. The law is extremely harsh in this regard. If you are caught driving whilst immediately suspended and before the court ultimately rules on your drink driving offence, then that driving will be treated as essentially driving whilst disqualified and will attract a minimum licence disqualification of two years. This would then be added on top of any period of disqualification you may receive for your drink driving charge.

We have had many examples where clients have recorded a drink driving charge, been arrested, then released and have immediately gone back to their car and started to drive again. As they breach the immediate suspension, their disqualification period can end up being in excess of three years when the drink driving disqualification is added on, especially where they have returned to the car still over the legal limit for driving.

In those cases the potential three-year disqualification cannot be mitigated by applying for a work licence as the driving under the immediate suspension charge eliminates that possibility.

For more information contact us on 1300 952 255. We appear in Southeast Queensland Courts every week conducting traffic matters such as drink driving, drug driving and disqualified driving. We can assist you should you be needing a 79E licence or work licence, or simply where you have a drink driving charge.

We recently appeared in the Sandgate Court for a client facing the real prospects of a prison sentence. The client had been charged with unlicensed driving due to a previous court ordered disqualification and high range drink driving or driving UIL (also sometimes referred to as a DUI).

Making the situation much worse for the client is that he had, in the words of the Magistrate, a terrible history that included eight previous disqualified driving charges and seven previous drink driving (UIL) charges. In the previous five years there were two high range drink driving charges alone. As a result of the legislation where a person has three high range drink driving charges within five years, a prison sentence must form part of the penalty imposed by the Magistrate. This doesn't mean that a person will necessarily go to jail, but it means a jail sentence will be imposed and the question will then become whether or not they should get an immediate parole release date.

In our client's circumstance, we had to fight very hard to try and keep him out of jail. Specifically, we were seeking that the court impose a jail sentence for the drink driving charge with an immediate parole release meaning the client would be released from the court that day with a jail sentence hanging over their head should they breach their parole.

We also had to deal the disqualified driving charge and in that circumstance we sought a probation order so that in essence, the client would be on a parole and a probation order at the same time.

Ultimately, we were able to convince the Magistrate to do this given that the client clearly had a long standing alcohol abuse issues, even though he had never sought treatment in the past. One of the things that was the most concerning for the Magistrate was that he had spent time in jail for the exact same charges two years ago. Therefore, our job was made particularly difficult as we could not argue that a jail sentence with actual imprisonment was not an appropriate sentence because that had previously been imposed by an earlier court for the exact same charges.

The client did not help himself in that he failed to obtain the type of references that we had suggested that he obtain and had not done any of the driving courses that we had suggested. We did have the client assessed by the Probation and Parole Officer at Sandgate Court and ultimately they informed the court that there were courses and structures that could be put in place to try and minimise the likelihood that the client would reoffend. The Magistrate said that she was faced with a difficult task in that deterrence is the number one issue for the court. That is deterrence specifically of our client from committing these offences again and deterrence of anyone else committing this offence. If a too light a sentence is imposed then deterrence of our client may not be effective and deterrence of the general public committing the same type of offences would also be diminished.

Ultimately, we were able to convince the Magistrate not to send our client to jail. But it was perhaps the closest you can come to a potential prison sentence without actually being sent to jail. Our client will now be subject to quite close and strict supervision by Probation and Parole to try and ensure that he does offend again. If he does offend in the next year he could be sent to prison for 28 days for breaching his parole order with further punishment likely.

There are some important lessons to learn from this type of offending and that is, it is important for a person to ensure that they have done everything prior to the court case possible to try and convince the Magistrate that they deserve a further chance by not being sent to jail. The other lesson to be learned is that disqualified driving especially where it combined with a drink driving charge (UIL) will be treated seriously by the Courts and there is a high possibly of receiving actual prison time for these types of offences, especially where like our client, the traffic history is poor.

If you need any information on drink driving offences or disqualified driving offences please contact us on 1300 952 255. We appear in all courts in South East Queensland from Southport to Gympie.

Disqualified driving is an extremely serious traffic charge in Queensland. The Courts are particularly hard on these types of offences as to be charged with disqualified driving you must have already been disqualified by a court. Disqualified driving is the most common traffic offence that causes people to be sentenced to jail.

The charge is different to a simple unlicensed driving charge as there must be a previous disqualification by the courts still in place at the time the offence was committed.

The court will impose a further minimum disqualification of 2 years however there may be circumstances where there is a defence to a disqualified driving charge.

The vehicle was not driven on a road

The law requires that to be guilty of disqualified driving the person must be driving a vehicle on a road. If the vehicle is being driven on private property this may be a full defence to the charge.

You weren’t driving the vehicle

There are often occasions were someone has taken or borrowed your vehicle and either triggered a speed camera or more seriously has evaded the police. In those circumstances it is critical to get immediate legal advice as very short and strict time limits may apply to being able to nominate another person as the driver. If you fail to nominate the other driver within the time limits then you can be legally declared the driver, also if you pay a speeding ticket or infringement notice may deemed to be the driver.

You were driving for an emergency

The law allows an exception for driving in an emergency. This in the past only extended to driving emergency situations such a person to hospital where no other transport was available. The courts have recently however begun to accept that not all situations require a dire emergency. For example we were successful in having a disqualified driving charge withdrawn against our client in the circumstances where our client drove to a chemist to get Panadol because everyone in the house was sick and he was the only person who could drive.

The key question is not what a reasonable person would have done but what an ordinary person in the shoes of the accused could have done. Once the defence is raised the onus fall on the prosecution to prove an ordinary person would not have acted in the same way as the accused.

There are also other defences such as mental capacity which are not covered in this article.

If you have a defence then in most cases you will need to take the disqualified driving charge to trial to be found not guilty. There are however often occasions where it is possible to make submission to the Prosecution Service to drop the charge before it goes to trial. This is a very involved process and should never be undertaken without a lawyer.

If the matter goes to trial then the charge would be held before a Magistrate but not a jury. If the court finds a person not guilty then that is the end of the matter. If however after trial a person is found guilty then it is important to note the further disqualification period only starts from when the Magistrate makes his or her decision. The Magistrate will also impose a fine and depending on a number of factors including traffic history might impose a term of imprisonment which may or may not be partly or wholly suspended.

If you think you have a defence, want to engage us or just need further information then you can either;

The legislation provides that where a person has two high range drink driving charges (a high range being above .15) and a person is again charged with another high range drink driving charge then the court must impose a sentence of imprisonment (all offences must occur within 5 years). In those circumstances the question becomes whether the person will actually spend time in jail. Whilst the legislation says a term of imprisonment must be imposed, there are options other than a person spending time in jail. Those options are either a wholly suspended sentence or an immediate parole release date.

A wholly suspended sentence involves a person being sentenced to a term of imprisonment but not being required to serve that imprisonment if they keep out of trouble for a length of time, usually 12-18 months. This way a person can remain in the community with the prison sentence hanging over them for a period of time, if they behave no further action is taken, if they commit an offence that carries a jail sentence then they will be bought before the court to serve the original suspended sentence.

An immediate parole release date is where a person is sentenced to imprisonment but is released from court into the supervision of a parole officer. They will be required to undertake courses and other programs but if they remain trouble free they will not have to serve the original sentence.

It is critical where a person is facing a high range drink driving charge for the third time that they get immediate legal advice.

How do I get more information or engage you to act for me?

If you want to engage us or just need further information or advice then you can either;

Use our contact form and we will contact you by email or phone at a time that suits you

We are asked everyday by people whether they can get a work licence, day licence or special hardship licence if they are disqualified by the courts or about to be.

In Queensland there are only two licences to allow a person to drive during a period of licence disqualification or suspension, these are work licences and special hardship licences.

A work licence is only available to people who are charged with a drink or drug driving offence and need to drive for work purposes. The Government however only allows certain people to apply for a work licence. To apply for a work licence you must be on an open Queensland drivers licence and the alcohol reading must be no more than .149. You cannot apply if in the last five years you have had your licence suspended (unless it’s a SPER suspension), cancelled or disqualified. This applies regardless of your circumstances (eg. You will lose your job, you can’t get your children to school etc). A work licence must be applied for at the time of sentencing for the drink or drug driving charge, it cannot be applied for later. For full details on applying for a work licence see our work licence page.

A special hardship licence is only available to Queensland open or provisional licence holder who elect to go on a good driving period and lose 2 or more demerit points during that one year period. A special hardship can also be applied for people who drive more than 40 km/h over the speed limit (high speed offence). Like a work licence a person with a disqualification or suspension of the licence in the last 5 years cannot apply (a SPER suspension is an exception). Unlike a work licence a Court can allow a person to drive for things other than for work purposes. These need to be extreme circumstances such as on-going specialist, medical or counselling appointments.

The rules for a special hardship licence application are very complex, more details can be found on our special hardship licence page.

There are no licences available if you have already been disqualified by a Court and subsequently find you need a licence nor are there licences available if you have been charged with offences such as demerit point unlicensed driving. If you do not qualify for a work licence or special hardship licence and are facing a disqualification by the courts then you will not be allowed to drive during that disqualification.

This area of law is changing constantly and you should get good legal help if you need to apply for a work licence or special hardship licence.

This article is written by Steven Brough one of Queensland’s most experienced traffic lawyers and contains general advice only not legal advice. For more information on work licences and special hardship orders visit the driving law website or call 1300 952 255 7am – 7pm seven days a week.

This article is for general information only and should not be relied upon as legal advice.

Often people are completely overwhelmed by the thought of attending the Brisbane Magistrates Court for a drink driving or DUI charge. In Australia these types of matters are never televised and so people often have no idea what the process will be like or worse think it will be something like the American process they have seen on TV.

This article gives some idea what a typical Court appearance will be like for an unrepresented person in the Brisbane Magistrates Court. It is important however to note that in almost all cases having a Lawyer represent you will result in a shorter disqualification period, smaller fine and much less stress.

What will happen in Court?

Firstly you should arrive at least 25 minutes before your scheduled Court start time. In the Brisbane Magistrates Court all drink driving matters begin at 9am and are generally heard in court 33 on level 7.

The Brisbane Magistrates Court is located at 363 George Street. There is another Magistrate Court in Brisbane known, very confusingly, as the Brisbane Magistrates Court – Roma Street. It would be very unusual if your matter were to be held in the Roma Street Court as this is reserved for criminal matters.

When you enter the Brisbane Magistrate Court there is a security point which you must go through. Once you have been through this on your right hand side is a number of electronic noticeboards which will list the Court number your matter will be heard in. You should then take the elevator to the floor where the Court is.

Eventually a Police Prosecutor will arrive you should then go and speak to them in the Court room. The Prosecutor will provide you the outline of the case against you, breath analyst certificate and your traffic history. This document is generally known as the “QP9”. The Police Prosecutor will only want to know whether you are pleading guilty, not guilty or seeking an adjournment. Given the large amount of people waiting to see the Prosecutor they cannot and won’t be able to engage in any real discussion of your matter.

Check the QP9 while you wait for the Court to start to ensure it is correct. If it isn’t go and talk to the Police Prosecutor. If the details on the QP9 are wrong it might be appropriate to seek an adjournment.

The Court will start when the Magistrate enters, please stand whenever the depositions clerk (the Magistrates assistant) or Police Prosecutor calls ‘all rise’ and then wait for the Magistrate to sit down before sitting yourself.

Typically those with Lawyers will go first and then those people seeking an adjournment will go next and finally those people who are pleading guilty will go last. There may be 30-60 people on any given day in the Court so it is not unusual for a unrepresented person pleading guilty not to be heard until 11am or even later.

Wait for your matter to be called and then approach the table where the Police Prosecutor is. You will stand to the far left of the table. Remain standing while the Magistrate asks what you are doing. At this point you must tell the Magistrate what you want to do. Please ensure you address the Magistrate as “Your Honour”. If you are pleading guilty the Magistrate will ask you to confirm this and then the Magistrate will then ask you to sit.

The Police Prosecutor will read a brief statement of facts and give the Magistrate a copy of your traffic history and breath analyst certificate. All of these documents will be in the QP9 so you should have already seen them.

Once the Police Prosecutor finishes the Magistrate will read the traffic history and breath analyst certificate and if they have any queries they will ask you. If you have not already filed any character reference tell the Magistrate if you have some, the Police Prosecutor will take them from you and will give them to the Magistrate. You then have an opportunity to explain to the Magistrate what happened with your drink driving charge and anything else you wish to raise.

Once you have finished speaking and when the Magistrate has no further questions for you they will impose the sentence. Given that all drink driving charges in Queensland carry a mandatory period of disqualification then you will be required to surrender your licence to the Prosecutor. Once this is done you may leave the Court.

If you are eligible to apply for a work licence and are choosing to do so your matter will be adjourned to another day to hear that work licence application. You must apply for a work licence before the court imposes your sentence, you cannot apply afterwards. More details about work licences can be found here

While you are free to represent yourself in Court, engaging Clarity Law to act for you has a number of benefits including;

We know the judges and what they want to hear to give you the lowest penalty

We have good relationships with the Police prosecutors meaning we can often have them support the penalty we are asking the Court to impose or make changes to what they will tell the Court

We will be able to get a copy of your QP9 before the Court date

We are there to help you through the process and make everything as stress free as possible, in most cases you will not have to say anything in Court

Engaging us shows the Court you are taking your charges seriously

Your matter will be heard early, often first, you do not have to wait for 30-50 other matters to be heard before you

You will be fully informed of what is to happen in Court and what this means for you after Court

Unlike the police or the Judge, we are there to look after you, your privacy and your interests

We appear in Brisbane Magistrates Court several times for with people charged with drink driving, it is this experience that allows us to get the best result for clients. Other law firms simply don’t have the experience that we do and don’t know the judges like we do. We offer one of the most competitive prices for drink driving charges in Queensland click here to see what we will charge. If you want to engage us or just need further information or advice then you can either;

Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice. Its represents information about the law in Queensland and since publishing the law, the practice of the court or the interpretation of that law may have changed.

Dangerous driving or more properly known as dangerous operation of a motor vehicle is one of the most serious traffic offences a person can be faced with in Queensland. Often the charge results from a traffic accident where the driver at fault has driven in a dangerous manner. Tragically often the tiniest mistake by a driver can lead to a person suffering death or grievous bodily harm and the driver who often has never broken the law before forced to navigate the court system.

The purpose of this article is to give some information to a person faced with a charge of dangerous driving causing death or grievous bodily harm.

Are there different levels of dangerous driving?

In Queensland there are three levels of dangerous driving

·Dangerous driving

·Dangerous driving causing bodily harm

·Dangerous driving causing grievous bodily harm or death

Dangerous driving causing grievous bodily harm or death is obviously the most serious of the offences. The offence is even more serious if at the time the driver was adversely affected by drugs or alcohol.

What is dangerous driving?

The expression "operates a vehicle dangerously" in general does not require any given state of mind on the part of the driver as that driver may believe he or she is driving carefully yet be guilty of operating a vehicle dangerously. "Dangerously" is given its ordinary meaning of something that presents a real risk of injury or damage. The ordinary meaning of ‘dangerous’ is ‘fraught with or causing danger; involving risk; perilous; hazardous; unsafe’. It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver’s own passengers.

What is grievous bodily harm

“grievous bodily harm” is defined to mean

(a) the loss of a distinct part or organ of the body;

OR

(b) serious disfigurement;

OR

(c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life or cause or be likely to cause permanent injury to health

It is immaterial whether or not medical treatment is or could have been available to the injured person.

What type of accidents can result in a dangerous driving charge?

A charge for dangerous driving often results from split second errors in judgement. We have in the past acted for people who have been charged with dangerous driving for;

1.Failing to see a motorcycle before entering an intersection

2.Being temporarily distracted causing the car to run off the road into the other lane of traffic

3.Falling asleep at the wheel resulting in a collision with a power pole and serious injuries to the passenger in the car

4.Turning too sharply on a dirt road causing the vehicle to roll and cause injury to a passenger in the vehicle

5.Driving at excessive speed

In most cases if no person had been injured the driver may only have faced a careless driving charge.

What court will hear the charge?

Whilst all matters start in the Magistrates Court the charge of dangerous operation of a motor vehicle causing death or grievous bodily harm can only be finalised in the District Court. For people in Brisbane this would mean the matter would start in the Brisbane Magistrates Court but would need to be transferred to the Brisbane District Court to finalise. The Gold Coast has a District Court at Southport, the Sunshine Coast has a District Court at Maroochydore. There is also a District Court at Beenleigh.

Who prosecutes the charges?

The Office of the Director of Public Prosecutions will prosecute the matter but will rely on the Queensland Police Service to investigate the matter and obtain the evidence.

Are there any defences?

Defences to a charge of dangerous driving might include:

1.The driving was in fact not dangerous, for example the condition of the road or the vehicle caused the accident.

2.Necessity, for example the driver had to drive as a result of an emergency

3.The accused was wrongly identified as the driver

A lawyer would be required to properly advise as to what defences might be available. If you plead not guilty to the charge of dangerous operation of a motor vehicle driving causing death or grievous bodily harm because you have a defence then the matter will go to a trial before a jury.

How long will the charge take to resolve?

It all depends on whether you are pleading guilty or not guilty. Typically for a guilty plea in the Brisbane Court it might take 6-8 months from the arrest to when it is finalised in the Brisbane District Court.

Will the charge result in a jail sentence?

It all depends on what happened, whether alcohol or drugs were involved and the extent of the injuries to the victim. In most cases you can expect a prison sentence if you plead guilty or are found guilty after a trial for a charge of dangerous driving causing death or grievous bodily harm.

How long will the licence disqualification be for?

The disqualification period must be at least 6 months but depending on the circumstance of the charge and the traffic history perhaps much longer. It is not possible to obtain a work licence or hardship licence to allow you to drive during the disqualification.

This article is written by Steven Brough one of Queensland’s most experienced traffic lawyers and contains general advice only not legal advice. For more information on Dangerous Driving visit the driving law website or call 1300 952 255 7am – 7pm seven days a week. This article is for general information only and should not be relied upon as legal advice.

There are three different levels of drink driving for an Queensland open licence driver:

Low - .05-.099

Mid - .1-.149

High - .15 and above

If you are charged with a high range drink driving charge in Queensland (also known as DUI or UIL) the mandatory minimum disqualification, for a first time offender, is 6 months. Obviously your penalty will vary based on your exact alcohol reading, your traffic history, personal circumstances and the Magistrate handling your case. For more information see our link www.drivinglaw.com.au/services/drink-driving.html

Whilst it is a given that someone charged with a high range drink driving charge is going to get a more severe penalty than that of a low or mid-range offender there is also other repercussions that result from a high range drink driving charge.

You will not be able to apply for a work licence

Work licences can only available to low to mid-range drink drivers. Regardless of your situation there is no way around this. There are other requirements you must meet to be eligible. For more information on this please see www.drivinglaw.com.au/services/work-licences.html

You will be subject to an Alcohol Ignition Interlock Device

Anyone charged in Queensland with a high range drink driving charge (or 2 low or mid-range drink driving charges within 5 years) will be subject to having an alcohol ignition interlock device fitted to their vehicle at the conclusion of their suspension. The alcohol ignition interlock device is similar to a breath test device and is connected to your vehicles ignition. You must blow into with a zero alcohol limit before your vehicle will start. You will need to have the alcohol ignition interlock device for a minimum of 1 year.

The alcohol ignition interlock device needs to be installed by an approved provider and costs vary depending on your vehicle size and if you are a pensioner. You will incur the costs associated with the rental, installation, servicing and removal of the interlock from your nominated vehicle.

If at the end of your suspension period you decide not to have an alcohol ignition interlock device installed in your vehicle, you will be unable to drive for a further 2 years from the date your Court suspension ended.

Whilst there are grounds for an exemption, there are few and it is difficult to obtain. Grounds of exemption can be if you are residing in a remote location (over 150kms from an alcohol ignition interlock installer) or living on an island, have a medical condition preventing you from being able to use the device or you have extenuating circumstances. Please note that extenuating circumstances cannot be that you are unable to install the interlock for employment or financial reasons.

If you are facing a high range drink driving charge it is important to have an experienced Lawyer represent you to ensure you obtain the absolute shortest suspension period and fine possible.

Getting legal representation

Here at Clarity Law we represent drink driving charges in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients. Other law firms simply don’t have the experience that we do and don’t know the process and the Magistrates like we do. We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice. Every week we appear in Brisbane, Gold Coast and Sunshine Coast courts helping clients with drink driving offences.

The information provided is for informational use only, and are in no way intended to constitute legal advice or to create a lawyer-client relationship, and you should not act or rely upon any information appearing in this article without seeking the advice of a lawyer. Moreover, because the law is constantly changing, the information appearing in this article are not guaranteed to be correct, complete, or up-to-date. Steven and Clarity law only undertake matters in Queensland.

Clarity Law's liability limited by a scheme approved under professional standards legislation.

We often get calls from people needing a special hardship licence for work purposes who also desire to be able to drive their children to school or other activities under that hardship licence.

First a bit of background, a special hardship licence or special hardship order is a licence that may be available to people who exceed their demerit points, elect to go on a 12 month good driving behaviour period and then during that period incur further demerit points. In those circumstances unless a person applies for a special hardship licence then they will have their licence suspended for a minimum of 6 months and be unable to drive. A person who has their licence suspended for exceeding the speed limit by more than 40 km/h (a high speed suspension) may also be eligible to apply for a special hardship licence. For more information about special hardship licences see our webpage - www.drivinglaw.com.au/hardship-licences.html

The special hardship licence is only available to people who are on a Queensland open or provisional licence and who have in the previous 5 years not had a licence suspension or disqualification (excluding SPER suspensions).

The special hardship licence is available where if the court were not to grant the order the applicant or their family would;

1.suffer extreme hardship by depriving them of the means of earning a living; or

2.suffer severe and unusual hardship for some other reason

To apply for a special hardship licence a person must lodge affidavits for themselves and their employer (if they are not self-employed) and must appear in their local court before a Magistrate to argue for the special hardship licence to be granted. For information on the timeline of a special hardship application see our previous article www.drivinglaw.com.au/blog/item/6-special-hardship-application-time-frames.html

In most cases it is relatively easy to establish that a person would suffer financial hardship if they lost their licence and as a result could not work. What is much tougher is being able to establish that a person would suffer severe and unusual hardship if they could not drive their children to school or other activities.

It is important to note that a special hardship licence is not a licence to be able to drive whenever a person desires, the order for the special hardship licence, if granted by the Magistrate, will restrict the hours, days, reasons and places a person can drive. The order will also restrict who a person can have in the car with them. Therefore to be able to drive children a person would need to first convince the court that they or their family would suffer severe and unusual hardship if not able to drive the children and if that is established then the court will need to specify exactly where and when the children could be driven.

The general attitude of most Queensland Magistrates is that they will not grant a person the ability to drive their children to school or other activities. To be able to convince the Magistrate to grant the right to drive children to school generally a person would have to prove that;

1. There is no public transport available to transport the children to school;

2.There is no one else who could drive the children i.e a partner or family member (further Affidavits on behalf of these people may be required in some circumstances);

3.The hours the parents work is such that driving the children to school is the only viable option to get them to school; or

4.The children have special needs that means driving them to school is the only option.

When it comes to being able to drive the children to sporting or other activates the courts are even more reluctant to allow this. Generally a person would only be able to drive their children to these activities if they could prove that

1.The children have special needs such that the sporting or other activities help with or

2.The children are competing at such a high level that if the parents cannot drive them they are likely to suffer severe and unusual hardship

The court would be looking for affidavit evidence from a doctor or a coach confirming the need to drive the children.

Due to the complexity of special hardship licence application, especially when requesting the licence to cover children’s needs it is important to engage a professional to represent you.

Clarity Law is Queensland’s leading traffic law firm covering every court is South East Queensland.

We undertake special hardship applications in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients. Other law firms simply don’t have the experience that we do and don’t know the process and the Magistrates like we do. We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice. If you want to engage us or just need further information or advice then you can either;

The information provided is for informational use only, and are in no way intended to constitute legal advice or to create a lawyer-client relationship, and you should not act or rely upon any information appearing in this article without seeking the advice of a lawyer. Moreover, because the law is constantly changing, the information appearing in this article are not guaranteed to be correct, complete, or up-to-date. Steven and Clarity law only undertake matters in Queensland.

Clarity Law's liability limited by a scheme approved under professional standards legislation.

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A QP9 (Queensland Police Form 9 or police court brief) is a document prepared by the Police Prosecutions unit when someone is charged with an offence. The QP9 lists the exact charge with a brief description of the facts which the Police are alleging against you as well as attaching any criminal or traffic history. Depending on what Court your matter is to be heard in, and how busy the Police are, the document will be provided prior to your Court date or at Court.

It is essential to carefully go over the QP9 prior to entering a plea before the Court, as you are not only pleading guilty to the charge but also to all the facts and circumstances surrounding the charge that the Police allege in the QP9, this may include the way you acted towards the Police, things that you said or admitted or information recorded by the Police that you may believe is incorrect or inaccurate. This should be remembered when being charged as harsher penalties or less leniency can apply if the document states that you were rude, unruly, unhelpful etc. Also being aggressive when being charged can easily result in a further charge of resisting arrest or obstructing or assaulting police.

Obtaining the QP9 or having a Lawyer obtain the document for you and having a thorough look over the QP9 before you enter your plea is essential so that if there is any discrepancies they are looked into.

In Court the Police will read out the charge and a brief rundown of their version of events from the QP9. It is then that your Lawyer, or yourself if you are self-represented, can have your say to the Magistrate. If there are significant factors from the QP9 in which you disagree with it may be possible to draft submissions and put them forward to the Police Prosecutions asking them to reconsider the charge or amend what is written in the QP9. A Lawyer can advise you as to the possibility of making submissions and if what the likely chances of the Prosecutor accepting them would be.

Some examples of our success in getting the Police Prosecutions to lower or dismiss charges are:

1.Our client was charged with dangerous driving whist effected by alcohol and drink driving. A person cannot be charged with both offences, only one or the other. We addressed this with the Police Prosecutions and the result was the charge of drink driving was withdrawn.

2.Our client was charged with unlicenced driving. At the time that the letter had come from Queensland Transport telling our client his licence was suspended our client had been suffering an extremely traumatic string of events. On these grounds we were able to convince the Police to withdraw the unlicenced driving charge.

3.Our client was charged with driving under the influence of drugs, being the higher of the two drug driving charges. Upon receiving the drug analysis certificate and after going over the QP9 document we were able to have the Police agree to downgrade the charge to driving with a relevant drug in the client’s system.

In more serious matters it is possible to request a full brief of evidence. This document is like a QP9 but much more detailed and will include any witness statements, CCTV or audio footage. Where applicable it is also possible to request any Police body camera or police vehicle camera footage that may be available.

Needless to say engaging a Lawyer to represent you ensures that all avenues are explored to ensure all aspects are covered and you ultimately receive the absolute best outcome possible.

Here at Clarity Law we appear in the Courts with clients all over South East Queensland. It is this experience that allows us to get the absolute best result for clients. Other law firms simply don’t have the experience that we do and don’t know the Magistrates like we do. We also offer the most competitive prices for representation in Queensland click here to see what we will charge. If you want to engage us or just need further information or advice then Call us on 1300 952 255 seven days a week, 7am to 7pm.

Disclaimer:

The information provided is for informational use only, and are in no way intended to constitute legal advice or to create a lawyer-client relationship, and you should not act or rely upon any information appearing in this article without seeking the advice of a lawyer. Moreover, because the law is constantly changing, the information appearing in this article are not guaranteed to be correct, complete, or up-to-date. Steven and Clarity law only undertake matters in Queensland.

Clarity Law's liability limited by a scheme approved under professional standards legislation.

Whist careless driving (also known as driving with undue care and attention) and dangerous driving charges can result from similar circumstances this is not the case with the penalties with the potential penalty for dangerous driving being much more serious. Both charges can be accompanied with a drink or drug driving charge if the driver tests positive.

Careless driving is the less serious of the two charges as it is traffic charge, not a criminal charge, although it can still be punishable with a jail sentence. Depending on circumstances it is possible to obtain a result of no disqualification being put on your licence, although it does carry a mandatory loss of 3 demerit points if you plead guilty or are deemed to be guilty. Should you be on a good driving behaviour period and the 3 point loss will breach it you may be eligible for a special hardship licence – for more information see our website - http://drivinglaw.com.au/hardship-licences.html

Careless driving charges can come about from an incident as minor as skidding in the wet and your car hitting a gutter or a tree or having a collision due to being distracted by the radio or attending to an item they may have dropped. Careless driving can also include accidents with pedestrians or other road users resulting in injuries to those people. Drivers charged with this are believed to have been not paying enough attention to the road, not actually driving what is deemed to be 'dangerous'.

Dangerous driving is the higher of the two charges and is in fact one of the few traffic related charge which is a criminal charge.

Dangerous driving charges occur when a driver was deemed to have driver a motor vehicle dangerously. In deciding whether the driving was dangerous the court looks at the speed the vehicle was driven and whether the driving was dangerous to the public having regard to all the circumstances including:

(a)the nature, condition and use of the place; and

(b)the nature and condition of the vehicle; and

(c)the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place; and

(d)the concentration of alcohol in the drivers blood; and

(e)the presence of any other substance in the drivers body.

It is always a good idea to seek legal advice if you are charged with either careless driving but especially so for a dangerous driving charge.

Depending on the circumstances of a dangerous driving charge, witnesses, damage etc it can be possible to case conference/ put submissions to the Police Prosecutions to have the charge lowered to careless driving if there are reasonable grounds. This is assessed by obtaining the police court brief.

Here at Clarity Law we represent driving charges in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients. Other law firms simply don’t have the experience that we do and don’t know the process and the Magistrates like we do. We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice. If you want to engage us or just need further information or advice then call 1300 952 255 7am – 7pm seven days a week

Disclaimer:

The information provided is for informational use only, and are in no way intended to constitute legal advice or to create a lawyer-client relationship, and you should not act or rely upon any information appearing in this article without seeking the advice of a lawyer. Moreover, because the law is constantly changing, the information appearing in this article are not guaranteed to be correct, complete, or up-to-date. Steven and Clarity law only undertake matters in Queensland.

Clarity Law's liability limited by a scheme approved under professional standards legislation.

The penalties handed down for unlicenced driving charges can vary greatly depending on the circumstances on how you came to be unlicenced in the first place.

If you forgot to renew your licence or you have never held a licence

The penalty for this type of unlicenced driving charge is at the Magistrates discretion and in most circumstances, depending how long your licence had been expired or your traffic history, can result in no suspension being put on your licence and you just receiving a small fine. There are however circumstances where if you were never licenced that the court will impose a 3 month disqualification.

However, if you have received an unlicenced driving charge in the past 5 years and are caught again then there is a penalty of between 1 to 6 months.

If you had a SPER debt and failed to pay it

Often people refer their fines to SPER to pay off. When SPER received the debt a payment agreement is made between SPER and yourself. Should you fail to honour the agreement and make the agreed payments your licence will be suspended for anywhere between 1 to 6 months. The mandatory minimum suspension time is the 1 month if you were caught driving on a SPER suspended licence and the Magistrate has no choice but to suspend your licence. In these types of unlicenced driving charges the fact that you did not receive the letter from SPER advising that your licence was going to be suspended on a certain date is not an acceptable defence. The Legislation states that Queensland Transport only need to show they sent the letter to you, not that you received it.

If you are demerit point suspended

If you exceed your demerit point limit (12 points in 3 years) you will be sent a letter from Queensland Transport. This letter will give you the option to have your licence suspended for a 3 month period or to go on a good driving behaviour period. If you do not reply and advise them which option you would like to select by the nominated date you will automatically be given the 3 month suspension. If you are caught driving during the 3 month period the penalty is a mandatory 6 month licence suspension. With this one particular charge, unfortunately engaging a Lawyer cannot achieve a lesser disqualification period.

Failing to have your licence re-issued by QLD Transport after serving a suspension period

If your licence is suspended by the Court you should have handed your licence in when the penalty was handed down in Court. Upon completion of the suspension period you must attend Queensland Transport and have your licence issued again. Until you do this you are deemed suspended still and if you are caught driving the penalty can be between 1 to 6 months.

Driving during your Court or Police ordered licence disqualification period

If you are disqualified from driving in a Court or are on a licence suspension period by the Police and are caught driving within the time you were ordered not to, it is classed as disqualified driving which holds a licence disqualification anywhere from 2 to 5 years. For more information on disqualified driving charges see - http://drivinglaw.com.au/services/disqualified-driving.html

Many people are unaware that they are unlicenced when they are charged with the offence. This can be due to multiple reasons. Some ways to avoid being expectantly charged with unlicensed driving are:

Always ensure that your current residential address is known to Queensland Transport Department and SPER, if you have a debt with them.

If you work away from home you should have someone monitor your mail in case any correspondence comes to you advising you have an overdue SPER debt, you have exceeded your demerit point limit or you receive a fine.

If you have a SPER debt that is direct debited from a bank account always ensure there are funds available for the payments to come out from. Also, if you change banks or close a bank account ensure the SPER payments were not connected to that account. If so you need to advise SPER of the bank account detail change immediately.

Here at Clarity Law we represent unlicenced drivers in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients. Other law firms simply don’t have the experience that we do and don’t know the process and the Magistrates like we do. We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice. If you want to engage us or just need further information or advice then you can either;

When most people hear DUI they usually associate it with a drink driving charge. Whilst this is correct, as DUI stands for ‘driving under the influence’ it can in fact relate to either a drink or drug driving offence.

There are three levels of drink driving charges, being

Driving with a low BAC (blood alcohol concentrate) reading of between .05 and .099. This charge carries a mandatory minimum of a 1 month suspension of your licence (for an open licence holder).

Driving with a mid BAC (blood alcohol concentrate) reading of between .1 and .149. This charge carries a mandatory minimum of a 3 month suspension of your licence.

Driving under the influence(“DUI”) of alcohol charge is a result of a reading of .15 or above. This charge carries a mandatory minimum of a 6 month suspension of your licence.

A DUI drug charge means that you were charged with ‘driving under the influence of drugs’. Drug tests search for traces of THC (active ingredient in marijuana), MDMA (speed or ecstasy) and methamphetamine.

There are two levels of drug driving charges, being

Driving with a relevant drug present in your system

This charge is issued when a drug test indicates there is drugs present in the driver’s system but they appear to be unaffected by the drugs or substance. If you are charged with this your driver’s licence will be suspended for a period of 24 hours. This charge carries a mandatory minimum of a 1 month suspension of your licence (for an open licence holder).

Driving under the influence of drugs (“DUI”)

This charge is issued when a drug test indicates there is drugs present in the driver’s system and/or the driver appears to be affected and impaired by drugs. This will be ascertained by the driver’s appearance (eyes, facials expressions etc), behaviour and mannerisms. If you are charged with this your driver’s licence will be suspended immediately. This charge carries a mandatory minimum of a 6 month suspension of your licence. Whilst if you are sentenced to in excess of this period the Magistrate can take into consideration the length of time you have already had your licence suspended, if you receive the minimum of 6 months, this period will be served in full from your Court date.

Driving under the influence of drugs can be a result of illegal drugs, synthetic drugs (designed to mimic the effects of illegal drugs) prescription drugs (Xanax, Valium) and even some over the counter medical prescriptions. Anytime that you are effected by a substance which alters your abilities in any way you could be charged with driving under the influence of drugs.

A roadside drug test is simply an oral swab which is tested immediately and will indicate if there is traces of drugs in your system. If the test indicates the presence of drugs you will need to undergo another drug test which is sent to a Government laboratory for testing. You will receive a drug analysis certificate when it is available from laboratory testing. If your roadside drug test indicates no drugs in your system, the Police are still able to order you to undergo a blood test if they believe you are under the influence of a drug or substance.

We have been successful in the past in having some drug DUI charges downgraded to driving with a relevant drug in the drivers system by in putting forward to the Police Prosecutions submissions giving reasoning and information as to why the client should not have been charged with a drug DUI and have only received a driving with the relevant drug in their system charge.

Whilst with alcohol there are rough guidelines to how long the alcohol will take to be processed and out of your system there is no such recommendation for how long drugs may stay in a person’s system for. Many people find themselves being charged with driving with drugs in their system long after they have consumed or ingested drugs. Because each person responds to the consumption of drugs in a different manner based on their personal chemistry, past use, type of drug taken, amount of drug consumed, height, weight and other factors, unlike alcohol consumption there is no way in when to tell when the drugs have left your system.

It is important to note that you do not have to be driving your vehicle to be charged with a drink or drug driving offence, you could be charged if you are merely sitting in the driver’s seat.

Charges of low or mid BAC or a driving with a relevant drug in your system, depending on your circumstances and previous traffic history, can allow you to apply for a work licence to be issued to you for the duration of your suspension period. An alcohol or drug DUI charge however eliminates this option.

Here at Clarity Law we represent people charged with drink and drug driving offences in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients. Other law firms simply don’t have the experience that we do and don’t know the process and the Magistrates like we do. We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice. If you want to engage us or just need further information or advice then you can either;

Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice. We are also not health professionals and our observations on drink driving and what effects a person’s BAC reading is based on our knowledge of representing thousands of drink driving client’s overs the past 15 years and not any specific medical training.